For some time, the American Enterprise Institute (AEI) has stood out from other respected think tanks generally favoring free markets and limited government in that its lead scholar in the area of politics and elections, Norman Ornstein, has generally been favorable to the so-called campaign finance ‘reform’ perspective. Other leading free market think tanks, such as the Cato Institute and Heritage Foundation, have taken a view closer to ours here at the Center for Competitive Politics, regarding limits on a citizen’s right to spend or contribute money to the candidates or causes of their choice as a grave infringement of First Amendment rights.

So it was a pleasant surprise to read a new report from AEI challenging the key arguments of President Obama’s proposed executive order that seeks to roll back the First Amendment rights recognized in Citizens United. Written by former Department of Justice official and current law professor John Yoo and former U.S. Attorney David Marston, the piece rightfully begins by quoting Nixon staff on their ‘Enemies List.’

“This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration. Stated a bit more bluntly-how we can use the available federal machinery to screw our political enemies. . . . The project coordinator should then determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g., grant availability, federal contracts, litigation, prosecution, etc.).”

–Excerpt from memorandum dated August 16, 1971, from John Dean to Lawrence Higby

A few additional excerpts:

…Moreover, as a weapon to silence political speech, the proposed executive order is striking in its sweep and boldness. Nixon aide John Dean proposed a modest beginning, suggesting “not more than ten” targets for his first enemies list. In contrast, the draft executive order requires every one of the millions of federal contractors5-whose business totals more than half a trillion dollars per year-to disclose their political contributions and expenditures to advocacy groups.

…Anonymous political speech is as American as Publius, the nom de plume used by Alexander Hamilton, JohnJay, and James Madison for their anonymous series of newspaper articles, now known as the Federalist Papers. For American debate on political issues both before and after ratification of the Constitution, anonymous political speech was the rule, not the exception.

Yoo and Marston have put together a fantastic report here, and the entire piece is a must-read.

Common Causes Selective Outrage By Sean Parnell Self-styled government watchdog Common Cause has demanded the IRS investigate the American Legislative Exchange Council (ALEC), claiming the group has engaged in lobbying, in violation of the laws governing 501(c)(3) organizations. The allegations are not only baseless, they expose Common Cause as an organization less interested in pushing […]

The National Law Journal published an article by Mimi Marziani, entitled “A loss for ‘We the people.'” The article stands out not be cause of the tired rhetoric that usually comes from the so-called “reform” community, but because of the level of creativity exhibited in trying to justify a line of reasoning rejected by the court.

A large part of Marziani’s argument rests on the argument that: “Roberts was forced to create a new right – the right to speak without response. ”

Last night I was on the Colbert Report, in a segment based on an interview taped last month. Also previously taped for the show was Sheila Krumholz, executive director of the Center for Responsive Politics. As I think I’ve mentioned before, it was undoubtedly one of the more unusual experiences I’ve ever had, and likely Sheila would agree.

A couple of points worth making about my appearance, and Colbert SuperPAC (technically, Americans for a Better Tomorrow, Tomorrow):

I was initially a little nervous about what would finally air – the interview was taped in mid-June, and given that much time it was easy to imagine them doing all sorts of editing and twisting of quotes to make me look more than a little foolish. But I’ve no complaints about the editing – the part where I looked a little foolish wasn’t due to editing, it was me. Sigh.

On that pesky First Amendent – that came about half an hour into the interview, after a lot of very aggressive and – odd, let’s say – questioning by Mr. Colbert. What can I say – I got flustered for about 30 seconds, and my mind went blank.

The bit about what are acceptable PAC expenses was pretty funny. It was edited a bit, but that was pretty much how the exchange went, concluding with a discussion of, if I remember correctly, an elephant who has slept with a politician and is on the payroll of the SuperPAC to write about it (this was a fairly typical line of questioning for the interview, btw). As I said, as long as he could show a reasonable connection to the purpose of his SuperPAC (to “destroy” his opponent, I believe he said), then pretty much anything is an allowable expenditure. It’s not difficult to imagine a private jet being used by a SuperPAC to fly their celebrity leader around to speaking engagements (although chartering, renting, or leasing are more likely to pass muster than buying, I’d expect), and a jet ski as for example a prop at a “buy American” rally or as part of an event tied to watersports doesn’t seem terribly out of bounds either (again, probably better to rent/lease than buy).

Montana’s high court has scheduled oral arguments for September in Western Tradition Partnership’s so far successful effort to undo Montana’s 1912 Corrupt Practices Act. The group challenged the act last year in wake of the high-profile U.S. Supreme Court case known as “Citizens United” that threw out parts of an old federal law prohibiting corporations and unions from paying to air ads for or against political candidates.

The group argues that a ban on corporate political “speech” is unconstitutional.

The North West Florida Daily News had an editorial this weekend lauding the Supreme Court’s decision in Arizona Free Enterprise v. Bennett:

On principle, we shudder anytime government tries to solve a problem by subsidizing it. That’s especially frightening in the area of political campaigns, where government subsidies favor some political opinions and can determine the outcome of an election.

There are also practical obstacles with a publicly financed system, namely, that it can be easily manipulated by savvy political consultants. Campaigns are successful because of effective targeting, tailoring a message to each political demographic. Under a publicly financed system, nothing can stop a union from triggering additional funds for their chosen candidate by launching a “phony” independent expenditure with “bad” targeting. After all, taxpayers are footing the bill so there’s no risk to such creative campaigning.

Self-anointed ‘good government’ and ‘reform’ group Common Cause has launched yet another witch hunt against those who dare to hold different views than them, this time demanding that the IRS investigate and punish the American Legislative Exchange Council (ALEC). Like their failed crusade against Supreme Court Justices Antonin Scalia and Clarence Thomas for allegedly being involved in a plot with wealthy libertarian brothers Charles and David Koch in the Citizens United case (which, among other things, would have required both Justices to have access to Hermione Granger’s nifty Time Turner in order to conquer the Gregorian calendar), there’s little reason for Common Cause to be taken any more seriously on this than reports of Crumple-Horned Snorkacks.

There is an awful lot of hysteria, hyperbole, conspiracy theory, and of course a Koch brothers connection in the complaint by Common Cause, but the basis of their demand for an IRS investigation of ALEC is explained in a Los Angeles Times story this morning:

The government watchdog group Common Cause has asked the Internal Revenue Service to investigate the tax status of the nonprofit American Legislative Exchange Council, or ALEC, an association of conservative state legislators and private sector officials that churns out hundreds of bills and resolutions annually to pare back regulation and promote business…

In a letter to the IRS, Common Cause argued that a review would help determine if ALEC’s tax-exempt, 501(c)(3) status should be revoked due to “excess lobbying or, alternatively, because ALEC appears to operate primarily to further private business interests and not to advance a charitable purpose.”

The letter from Common Cause to the IRS goes into further detail, but the horcrux of their complaint is that developing model legislation is lobbying, ALEC claims it does no lobbying, as a 501(c)3 organization ALEC is not permitted to have lobbying as a substantial portion of their activities, therefore ALEC is violating its tax status and filing false returns with the IRS.

Apparently Common Cause was hit with a Confundus Charm, because their argument simply doesn’t make sense.

Alexandria, Va. — The Shareholder Protection Act was scheduled to be introduced yesterday in the House and Senate by Rep. Michael Capuano (D-Mass.) and Sens. Robert Menendez (D-N.J.) and Richard Blumenthal (D-Conn.). The bill claims to improve corporate governance in the area of political spending in the wake of last year’s Citizens United v. Federal Election Commission that allowed corporations and unions to spend without government restraint in elections.

“The Shareholder Protection Act is little more than a thinly-disguised effort to silence the business community by imposing cumbersome and time-consuming regulations on their political speech,” said Sean Parnell, president of CCP. “After the DISCLOSE Act failed, so-called ‘reformers’ have become ever more desperate to undermine Citizens United, but only for those whose voices they do not want the American public to hear. Congress should recognize this bill as an attack on the First Amendment and reject it.”

CCP President Sean Parnell was recently interviewed for the Vinnie Penn Project on WELI- 960 radio out of New Haven. Connecticut listeners can consider themselves better informed as emerging issues on campaign finance and its implications continue to make the news.

It’s no secret that some folks oppose political speech rights for corporations. And leading that charge are two New York City politicians who, to their credit, are more transparent about their goals and motivations than most.

I’m referring to Public Advocate Bill de Blasio and City Comptroller John Liu. Both sit on the boards of the City’s major pension funds, and both have been pushing for greater limitations on corporate political spending.

But they are at least transparent about it, explicitly saying that they want to shut down corporate speech. In Mr. de Blasio’s words: “[w]orking with pension funds here in New York and nationwide we can continue to get corporations to reject the political activities afforded them by Citizens United.” Admittedly, Liu and de Blasio do continue the “reform” community’s charade of hiding behind entirely-speculative (and, to date, largely-debunked) theories that political spending poses concrete risks to corporate profitability. But they are at least honest enough to say that what they really want is not shareholder control, or disclosure, but rather corporate silence.